Court of Appeals Digest

This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at http://www.wisbar.org/wislawmag. Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

Civil Procedure

Motion to Dismiss for Failure to State a Claim – Summary Judgement

In this opinion, the court of appeals reviewed summary judgment methodology and clarified the proper procedure when, as occurred in this case, a plaintiff wishes to submit factual materials going beyond the allegations of the complaint in response to a motion to dismiss for failure to state a claim.

Under summary judgment methodology, the first step is to determine if the complaint states a claim for relief. If the complaint does state a claim for relief and the answer joins issue, then the court considers the moving party’s affidavits to determine if they make a prima facie case for that party. If they do, the court examines the affidavits of the opposing party to determine if there are genuine issues of material fact requiring a trial (see ¶ 9).

Pursuant to Wis. Stat. section 802.06(2)(b), on a motion to dismiss for failure to state a claim for relief, if matters outside the pleadings are presented and are considered by the court, the court is to treat the motion as one for summary judgment. Said Judge Vergeront on behalf of the court of appeals, “[w]hether the motion is initially one for dismissal under Wis. Stat. § 802.06(2) and is then converted to one for summary judgment under § 802.06(2)(b), or whether it is filed in the first instance as a motion for summary judgment under § 802.08, the court does not consider matters outside the pleading until it has determined that the complaint states a claim for relief…. In other words, the submissions by a plaintiff showing facts not alleged in the complaint do not ‘cure’ a pleading deficiency” (¶ 12). “When a plaintiff is faced with a motion to dismiss for failure to state a claim and recognizes that the complaint does not allege all facts necessary to state a claim, the proper procedure is to amend the complaint or seek permission to amend the complaint” (¶ 13).

Criminal Procedure

The defendant appealed her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because defense counsel used a peremptory challenge to remove her. The defendant argued on appeal that she is entitled to a new trial because the presiding judge should have removed his daughter-in-law sua sponte instead of forcing the defendant’s trial attorney to either move to strike for cause or exercise a peremptory strike.

In a decision authored by Chief Judge Brown, the court of appeals reversed. It held that “presiding judges must sua sponte remove their immediate family members from the panel of potential jurors. We do so in part because any other holding would require judges to rule on a party’s motion to strike judges’ immediate family members from the jury pool” (¶ 14). The court rejected the state’s argument that there was no prejudice because the judge’s daughter-in-law did not actually sit on the jury. Said the court, “[t]he problem here is that it is difficult to measure the precise effect on trial counsel’s conduct during voir dire when a presiding judge’s family member is part of the panel of potential jurors. There is too much of a risk that the situation creates a chilling effect on robust inquiry, inquiry that is oftentimes critical to the selection of an impartial jury”(¶ 1).

The court did not decide this case based on the defendant’s Sixth Amendment right to be tried by an impartial jury (see ¶ 22). Rather, it saw the case as raising a question about how courts administer justice. “[E]ffective operation of the court system requires that presiding judges not allow family members to be potential jurors” (id.). “We are satisfied that a bright-line rule such as this is far more efficient than a case-by-case analysis of whether the presence of a prospective juror on the voir dire panel might have affected the outcome of a trial” (¶ 23).

Sex-offender Registration Law – Reporting Requirements

Dinkins was convicted in February 1999 of first-degree sexual assault of a child and sentenced to a 10-year prison term. This offense required him to register as a sex offender upon his release from prison. He was scheduled to be released from prison on the expiration date of his sentence in 2008. Thus, he would not have been on supervision after release. Under Wis. Stat. section 301.45(2)(d), an offender scheduled for release from prison must report certain information for the sex-offender registry, including the address at which he or she will be residing, “no later than 10 days before being released from prison.”

Dinkins was unable to find post-prison housing for himself. Three days before his scheduled release date, he was charged with failing to provide required information to the sex offender registry 10 days before release. He was subsequently found guilty in a trial to the court. His motion for postconviction release was denied and he appealed. In a decision authored by Judge Higginbotham, the court of appeals reversed.

Dinkins argued that he could not be convicted of failing to provide his post-release address as required under section 301.45(2)(a)5. because he could not locate post-release housing and thus did not have an address at which he would be residing that he could provide to the Department of Corrections. In response, the state argued that Dinkins could have complied with the address-reporting requirement by providing the nearest address of any place he planned to sleep, including, for example, a park bench.

The appellate court agreed with Dinkins. “Contrary to the State’s position, the term ‘residing’ in the address reporting requirement plainly does not encompass a park bench – or a heating grate, bush, highway underpass, or other similar on-the-street location, for that matter. Reading the address reporting requirement in conjunction with the requirement that prisoners nearing the expiration of their sentence provide this information prior to their release, we conclude that the statute contemplates the prisoner supplying the address of a location where the prisoner could reasonably predict he would actually be able to ‘resid[e].’ We reject the State’s argument that a park bench or similar on-the-street location is such a location. We therefore reverse the judgment of conviction and the order denying postconviction relief” (¶ 3). “Because it is undisputed that Dinkins lacked an address at which he could have reasonably predicted he would have been able to ‘reside,’ we therefore conclude that he could not be convicted of failing to comply with the address reporting requirement” (¶ 24).

The appellate court acknowledged that “this case highlights an apparent unintended gap in the address reporting requirement of the sex offender registration law…. [T]he statute contains at least one questionable assumption. It seemingly assumes that all soon-to-be-released prisoners are able, in advance of leaving prison, to identify a location at which they may ‘resid[e].’ Fixing or improving on this gap is beyond our limited authority, and we encourage the legislature to address it” (¶ 4).

Search and Seizure – Knock and Talk – Constructive Seizure in the Home

Cesar appealed from a judgment of conviction for operating while under the influence of an intoxicant (OWI), contrary to a Sheboygan ordinance adopting Wis. Stat. section 346.63(1)(a), and hit and run of property adjacent to a highway, contrary to section 346.69. Cesar challenged the circuit court order denying his motion to suppress evidence, which, he claimed, was obtained as the result of an unlawful stop and detention. He argued that he was unlawfully seized within his home, and that his subsequent statements to the police were involuntary.

The police investigation in this case arose from a report that a vehicle had struck a fire hydrant and left the scene. The time was about 10 p.m. Police officers located a truck matching a description provided by a witness in the vicinity of the accident. The truck was registered to Cesar, who resided at the address where the truck was found. Two officers attempted to make contact with Cesar by knocking on the front door of his residence; a third officer waited at the back door. The officers rang the doorbell and knocked on the home’s door and windows numerous times. Eventually Cesar came to a window, and the officers said they needed to talk to him about the accident. Cesar responded that he was not coming out of the house and told the officers he did not wish to speak to them. A “back and forth” ensued for several minutes, until the officers told Cesar that they “were going to stay there until either [they] applied for a search warrant or he came out and talked with [them]” (¶ 5). Cesar eventually left the residence and conversed with the officers on the front porch, admitting that he had driven the truck and had consumed Ambien and alcohol before driving. He was then arrested.

Cesar argued that he was unlawfully seized within his home in violation of his Fourth Amendment rights and that his statements to the police on the porch were involuntary. In a decision authored by Judge Neubauer, the court of appeals disagreed. It began its Fourth Amendment analysis by examining whether a seizure occurred in this case. “A person is considered ‘seized’ if a reasonable person would not feel free to leave or terminate the conversation with an officer, taking into account all of the relevant facts of the circumstance. See United States v. Mendenhall, 446 U.S. 544, 554 (1980). However, where as here, the situation is such that a person would not wish to leave his location, such as his home, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 436 (1991). Thus, a ‘knock and talk’ interview at a private residence that has lost its consensual nature and has effectively become an in-home seizure or ‘constructive entry’ may trigger Fourth Amendment scrutiny under Bostick. Id. at 434; see also United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) (a ‘constructive entry’ occurs when the police do not enter the house but ‘deploy overbearing tactics that essentially force the individual out of the home’). Although the ‘constructive entry’ doctrine has not been expressly adopted by Wisconsin courts, it provides a Fourth Amendment check on ‘knock and talk’ encounters and we employ it here as the backdrop to our analysis” (¶ 13).

Courts that use the constructive-entry doctrine have considered the following nonexhaustive list of relevant factors in determining whether a constructive entry to a residence has occurred during a knock and talk: the time of day, the number of officers present, the show of authority, and officer persistence (see ¶ 17). See United States v. Jerez, 108 F.3d 684 (7th Cir. 1997); United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008). Applying these factors to the present case, the court of appeals concluded that “the police were not overly intrusive or coercive in attempting to gain contact with Cesar. We conclude that once informed of his or her options, a reasonable person would have understood that he or she was free to terminate the encounter” (¶ 19). Finding that no seizure occurred, the court noted that the encounter occurred shortly after the defendant returned home, only two officers were actively attempting to make contact with him, and the officers made no commands, express or implied. “Rather, while the officers knocked persistently at the outset, upon establishing contact with Cesar, they informed Cesar of his options and requested his cooperation” (¶ 17).

The appellate court also concluded that the challenged statements followed a voluntary exit from the home and that Cesar was not otherwise coerced. Accordingly, there was no basis on which to conclude that his statements were anything but voluntary (see ¶ 21).

Destruction of Evidence – Exculpatory Value

Munford was convicted of murder for intentionally shooting a person following a fracas on the street. Munford allegedly shot the victim from his van. Police seized the van, thoroughly examined it, took pictures, and so on, but the van was later destroyed pursuant to routine impoundment protocols. Munford argued that someone else shot the victim and that the van’s destruction denied him the opportunity to develop evidence on this point. The circuit court ruled that the van’s destruction did not deny Munford due process, and the court limited references at trial to the van’s destruction by police.

The court of appeals affirmed in an opinion written by Judge Brennan. The van’s destruction did not deprive Munford of due process. The record failed to reveal that the van had any apparent exculpatory value at the time of its destruction. The court also seemed satisfied that the police had thoroughly and conscientiously inspected it for evidence, particularly in closely examining a small hole in the glass that they concluded was too small to be a bullet hole (see ¶ 24). Nor did the trial judge abuse her discretion by narrowly precluding any direct reference to who destroyed the van (the police) and why. The defense was free to cross-examine police witnesses about their inspection of the van. The court also held that error, if any, was harmless.

Sentencing – Probation – Authority of Courts to Reduce Probation Term

After completing seven years of a 10-year period of probation, the defendant moved the circuit court for a modification of his probation term from 10 years to seven years. He asserted that the reduction was appropriate because his progress on supervision had been largely successful and he was no longer a threat to the community. Over the state’s objection, the circuit court ordered the modification. The state appealed and the court of appeals, in a decision authored by Judge Blanchard, reversed the order of the circuit court.

Section 973.09(3)(a) of the Wisconsin Statutes provides that “[p]rior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.” The appellate court concluded that this statute does not authorize the circuit court to reduce the defendant’s probation period (see ¶ 1). “[C]ourts are authorized under Wis. Stat. § 973.09(3)(a), by order and upon a showing of cause, to ‘extend probation for a stated period,’ and, as a separate grant of authority, to ‘modify’ an identified set of terms or conditions of the probation. Neither the word ‘terms,’ nor the word ‘conditions,’ refers to the length of a probationary period. The word used in §973.09(3)(a) to refer to the temporal extent of probation is ‘period,’ not ‘terms’” (¶ 18).

The appellate court also addressed whether circuit courts have inherent authority to reduce a previously imposed period of probation. Prior decisions make a distinction between sentences and probation. With regard to sentences, a court’s inherent authority to modify a sentence is limited. In State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524, the supreme court summarized the limited situations in which a sentence modification can be made: “(1) a clear mistake was made at sentencing, calling for a correction of a formal or clerical error, or an illegal sentence; (2) a new factor is presented, one that the circuit court could not or did not consider in the original sentencing but now should consider in order to fulfill the purposes of the original sentence; and (3) the sentence is unduly harsh or unconscionable” (¶ 28).

In the present case the court of appeals did not decide whether circuit courts possess inherent authority to reduce probation periods that have already been imposed that is comparable to the well-defined and limited inherent authority courts possess to reduce sentences as described above. “We need not do so because we conclude that, even assuming that circuit courts possess this inherent authority, it must be circumscribed in the same way as the inherent authority of courts to modify sentences already imposed” (¶ 31). None of the bases for modification were present in this case. The defendant did not argue that his original probation period was ordered by mistake or that it was illegal nor did he make an unconscionability argument. As for the new-factor basis for modification, the court of appeals concluded that circuit courts “have no inherent authority to reduce probation based on a finding of successful rehabilitation” (¶ 1).

Following sentencing on a charge of second-degree sexual assault of a child, the defendant, Lopez, sought to withdraw his guilty plea. He claimed that at the plea hearing, the court did not adequately ascertain that he understood the constitutional rights he was waiving and that his attorney failed to explain his rights to him. The circuit court acknowledged that the plea colloquy was deficient but held that there was enough information in the record to conclude that Lopez’s plea was knowing, intelligent, and voluntary. In a decision authored by Chief Judge Brown, the court of appeals affirmed.

At the plea hearing the circuit judge did not list or explain the constitutional rights that Lopez was waiving; the judge merely confirmed that Lopez had signed the standard guilty-plea questionnaire and that he understood the rights contained therein. This was inadequate. “To ensure that pleas are knowing, intelligent, and voluntary, trial courts must engage defendants in adequate plea colloquies that comply with Wis. Stat. § 971.08 and case law. The trial court may refer to the plea questionnaire, but the questionnaire may not be a substitute for a personal, in-court colloquy” (¶ 8) (citations omitted).

Because the defendant showed that his plea was deficient, the burden shifted to the state to show by clear and convincing evidence that the plea was knowing, intelligent, and voluntary despite the inadequacy of the colloquy. In attempting to meet this type of burden, the state may use the entire record and may examine the defendant or defense counsel to shed light on the defendant’s understanding and knowledge (see id.).

In this case the appellate court concluded that the state met its burden. “Despite the inadequacy of the plea colloquy, the record shows that Lopez fully understood the constitutional rights he waived. First, the record shows that the trial court did list Lopez’s constitutional rights at the initial appearance, and Lopez affirmatively acknowledged that he understood them at that time. Subsequently, Lopez again acknowledged his understanding of the contents of his plea questionnaire by checking the boxes himself and signing it. He affirmed it once more at the plea hearing by acknowledging that he had signed the form and understood its contents. Finally, we agree with the State’s underscoring of Lopez’s extensive criminal history as a significant factor showing his knowing and voluntary waiver of rights. It is quite apparent that Lopez was familiar with the court system, despite his education level. While his criminal history is not dispositive, it is appropriate to infer some understanding based on his prior experience. When combined, Lopez’s multiple affirmations that he understood his rights, his extensive criminal history, and the fact that he ultimately signed the plea questionnaire and pled guilty lead us to believe that his plea was knowing, intelligent, and voluntary” (¶¶ 11–12).

Lastly, the court emphasized that “we do not condone the routine that Lopez’s trial attorney customarily uses with regard to plea questionnaires. By postulating that if the client understands a certain legal term, he or she will understand everything else, the attorney runs the risk that the client will not, in fact, understand something of importance. We encourage defense counsel to be thorough – by dissecting each constitutional right individually to make sure defendants completely understand the constitutional rights they are waiving. This goes beyond asking if a defendant understands what is written on a form. Attorneys should always go through each enumerated right to ascertain whether the defendant truly understands what is being waived. That being said, after reviewing the record as a whole, we remain confident that Lopez understood the constitutional rights he was waiving” (¶ 13).

Self-incrimination – Compelled Statements – Probationers

Peebles was convicted of sexually assaulting a child. At sentencing, Peebles’ trial counsel failed to object when the judge considered several admissions by Peebles to the effect that he had committed numerous other sexual assaults. Peebles contended that the statements were made to his probation agent under compulsion; their use at sentencing thus violated his right against compelled self-incrimination.

The court of appeals reversed and remanded for a new sentencing in an opinion authored by Judge Hoover. Case law gives rise to four general rules: “First, if a probationer refuses to incriminate himself or herself as required by a condition of supervision, he or she cannot be automatically revoked on that ground; second, if the probationer refuses despite a grant of immunity, his or her probation may be revoked on that basis; third, any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings;and fourth, if a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding” (¶ 19).

On these facts, Peebles’ statements fell within the second and third categories. That is, “rather than invoking the privilege, he provided statements and now seeks to exclude them in a subsequent criminal proceeding, arguing they were compelled.Both the circuit court and Peebles’ probation agent ordered Peebles to attend sex offender counseling. His supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling. Both of the supervision rules documents explicitly informed him he could be revoked for failure to comply with any conditions. Moreover, Peebles then gave his statements, at least in part, because he was required to take lie detector tests. Therefore, as Peebles’ trio of cases makes clear, his statements were compelled for purposes of the Fifth Amendment” (¶ 20).

The court rejected the state’s attempts to distinguish Peebles’ case from the controlling precedent. It also concluded that his lawyer was ineffective in failing to object to the use of the compelled statements at sentencing, and that Peebles was prejudiced by this ineffective assistance. “Reasonably competent counsel would have known, or discovered, that the Fifth Amendment privilege applies to probationers, including those required to provide admissions in sex offender counseling” (¶ 28).

Evidence

Confrontation – Authentication – DNA Surcharge

Baldwin was convicted of assorted crimes relating to domestic violence, bail jumping, and other acts. The main witness against him was his former girlfriend, who is the mother of his children. When she failed to appear, the trial judge ruled that her hearsay statements to police were nonetheless admissible against Baldwin under the rule of forfeiture by wrongdoing.

The court of appeals affirmed in an opinion authored by Judge Brennan. First, the circuit court properly applied the rule of forfeiture by wrongdoing. The defendant argued that the trial judge relied on “bad law” because prevailing state case law at the time of trial, State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, was effectively overruled by Giles v. California, 128 S. Ct. 2678 (2008). See ¶¶ 37-39. In summary, Jensen required only a showing that the defendant had made the witness unavailable, whereas Giles mandated a further showing that the defendant intended to prevent the witness’s testimony. The record showed that the trial judge had “presciently” anticipated the Giles holding by ruling that the defendant had intended toprevent the victim from testifying at trial (see ¶ 41). Of special note, the court applied language in Giles that addresses the salience of “past abuse” in domestic violence cases of all stripes. Moreover, the record also showed that the victim was “unavailable” within the meaning of Wis. Stat. section 908.04 and that the state had “exercised due diligence and good faith” in attempting to produce her in court (see ¶ 49).

A second issue concerned the authentication of a recorded telephone conversation between the defendant and the victim while he was in jail. Authentication requires only that the proponent put forward sufficient evidence to support a finding that the voices were those of the defendant and the victim. Testimony by a witness familiar with the victim’s voice, the content of the conversations, and jail records all provided ample proof.

Finally, the court of appeals lacked jurisdiction to consider the defendant’s argument that he was not subject to the DNA surcharge. The defendant, acting pro se, had failed to file a notice of appeal from the circuit court’s order denying his postconviction motion (see ¶ 59).

Fraudulent Transfers

Remedies – Punitive Damages

Kelly bought land on a land contract that was owned by C&A Investments. Kelly defaulted but it came to light that he had transferred substantial parts of the property to friends and family to shield it from foreclosure. A jury found that Kelly’s transfers were fraudulent under the Uniform Fraudulent Transfers Act. See Wis. Stat. ch. 242. It also awarded punitive damages against Kelly. The circuit court invalidated the fraudulent deeds and mortgages and upheld the punitive damages award.

The court of appeals reversed the award of punitive damages in an opinion written by Judge Peterson. The Act sets forth a “comprehensive statutory scheme for redress of transfers made to hinder, delay or defraud any creditor of a debtor” (¶ 6). Section 242.07(1) of the Wisconsin Statutes provides various remedies, but punitive damages are not among them. Other states’ courts are divided over whether the Act allows punitive damages (see ¶ 12). Wisconsin case law clearly provides that punitive damages must rest on compensatory damages, that is, monetary damages, not on an equitable remedy like the rescission of a deed (see¶ 14). “Because C & A Investments was not awarded compensatory damages, it was not entitled to recover punitive damages. Nothing in the Uniform Fraudulent Transfers Act changes this principle of law or otherwise permits a punitive damages award” (¶ 6).

Guardianships and Protective Placements

Respondent’s Right to be Present at Hearing – Forfeiture of Right by Misbehavior in Courtroom

Joseph S. appealed orders entered by the circuit court appointing a guardian over his person and his estate and directing that he be protectively placed in an unlocked residential facility. At the hearing on the guardianship and protective-placement petitions, the circuit court ordered Joseph removed from the courtroom for making disruptive and profane remarks. This occurred after the evidence was closed but before the court issued its ruling and at a point in the proceeding when Joseph would have had an opportunity to provide input in the form of a final statement to the court.

Joseph argued that he had a right to be present for the entire hearing under Wis. Stat. sections 54.44(4) and 55.10. He contended that he was not given a required warning that he could be removed and thus did not forfeit this right to be present; without his presence in the courtroom, he said, the circuit court lost competency to proceed on the petitions. In a decision authored by Judge Higginbotham, the court of appeals agreed with Joseph S.

The controlling statutes require the petitioner in a guardianship or protective-placement action to ensure the respondent’s attendance at the petition hearing unless the guardian ad litem waives the attendance. See Wis. Stat. §§ 54.44(4)(a) (guardianship), 55.10(2) (protective placement).“Failure to ensure the attendance of the respondent at a hearing absent a valid waiver by the guardian ad litem causes the trial court to lose competency to proceed on the petition” (¶ 5).

The court agreed with the parties that a person may forfeit his or her right to attend the hearing. In search of a standard for determining whether forfeiture has occurred, it used the approach specified for criminal cases by the U.S. Supreme Court in Illinois v. Allen, 397 U.S. 337, 343 (1970): “[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom” (¶ 11).

Applying the Allen standard, the appellate court concluded that, because the trial judge did not advise the respondent before ordering his removal that he could be removed from the courtroom for acting in a disruptive manner, the respondent “did not forfeit his right to be present at the hearing, and thus the court lost competency to proceed on the petitions against him” (¶ 14). The error was not harmless (as the county contended) because “it deprived the court of the authority conferred by statute to act on the petitions” (¶ 15). Accordingly, the matter was remanded with directions to the circuit court to recommence the hearing, with the respondent present, at the point in the proceeding at which he was removed from the courtroom (see ¶ 16).

Insurance

Employee Negligence – Exclusions – Independent-concurrent Cause

While driving a van owned by his employer, Keck killed two people. He was intoxicated at the time. The plaintiffs sued the company and its insurer, West Bend, on the theory that as Keck’s employer, the company was negligent in its policy-making and in its hiring, supervision, training, and retention of Keck. The circuit court granted summary judgment to the insurer on the ground that neither the commercial general liability (CGL) policy nor the umbrella policy provided coverage for the claims against the company.

The court of appeals affirmed in an opinion written by Judge Fine. The parties agreed that the van driven by Keck was not a “covered auto” under the CGL policy. The CGL policy plainly excluded coverage under a negligent-entrustment claim (see ¶ 6). Nor did the umbrella policy cover the deaths. Although the umbrella policy covered instances in which the primary insurance “does not provide coverage,” the “owned-non-covered auto exclusion kicks in to remove that coverage” (¶ 7).

Finally, the court rejected the plaintiffs’ reliance on the independent-concurrent-cause doctrine. “Applying this rule here, there is no coverage even if [the company] did not do things that might have prevented Keck from driving the van at all or driving it while drunk when he hit [the victims] because the damages the appellants claim all flow from the risk excluded by both the Commercial General Liability and umbrella policies – the driving of the van. Stated another way, without the excluded risk (Keck’s driving the van) the alleged negligence of Chapp and his company would not be actionable; Chapp’s negligence, if he was negligent in the ways appellants contend, requires the use of an automobile to be actionable” (¶ 8). Case law “highlighted” that “when one concurrent cause of damage is not covered by the policy, an insurer will be liable under the independent-concurrent-cause rule if and only if another concurrent cause is independently actionable” (¶ 12).

Duty to Defend – Coverage

Olson sued Farrar for damaging Olson’s truck and mobile home. Farrar was using his tractor to tow Olson’s mobile home to a new location while Olson followed behind in his truck. When Farrar’s tractor stalled on a hill, it rolled backward, causing Olson’s mobile home to collide with Olson’s truck and damaging both vehicles. Farrar was insured by Mt. Morris, which later intervened in the lawsuit and moved for bifurcation relating to coverage and liability. The circuit court granted summary judgment to Mt. Morris, finding it had no duty to defend or to indemnify Farrar.

The court of appeals reversed in an opinion authored by Judge Sherman. First, the court was free to look beyond the four corners of the complaint and the insurance policy because Mt. Morris had moved “beyond the initial duty to defend stage of the proceedings” by seeking bifurcation and then moving for summary judgment (¶ 11). Second, summary judgment was inappropriate on this record. “[F]or there to be coverage in the present case under the policy’s motorized vehicle incidental liability coverage: (1) the property damage must have resulted from a ‘mobile home trailer’; (2) the ‘trailer’ must not have been ‘towed by, or attached to a motor vehicle’; and (3) the property damaged must not have been ‘occupied by, used by, or in the care of’ Farrar” (¶ 14).

As to the first issue, the ambiguity of the phrase “resulted from” defeated summary judgment. As to the second, “[b]ecause Mt. Morris fails to point to any undisputed facts showing Farrar’s tractor, or any aspect of it, was designed for use on a highway, we conclude it does not meet the policy’s definition of a ‘motor vehicle,’ namely, a motorized vehicle ‘designed for use on public roads.’ The circuit court erred in concluding otherwise” (¶ 22). Finally, undisputed evidence did not bring the claim within the policy’s “care, custody, or control exclusion” (¶ 26). Rather, “the undisputed facts show that Olson’s mobile home had not been left in Farrar’s sole possession. The mobile home was being towed by Farrar, but Olson was also present – he apparently assisted in the moving of the mobile home by following behind Olson’s trailer as it towed the mobile home” (¶ 29).

Volitional Acts – Sexual Abuse

The plaintiffs sued the Archdiocese of Milwaukee and others, alleging the defendants had shielded priests who allegedly molested them. The circuit court ruled that a commercial general liability (CGL) policy did not cover the alleged acts because they were volitional acts and not accidents within the policy’s meaning.

The court of appeals affirmed in an opinion written by Judge Kessler. The opinion applies well-settled case law to the issues raised by the pleadings. “[T]he focus for purposes of this appeal is not the ultimate injury the plaintiffs suffered, but rather the underlying acts of the Archdioceses that led to the plaintiffs’ injuries. The complaints allege that agents of the Archdiocese were aware of the sexual abuse histories of the clergy at issue but still kept the clergy in academic environments knowing they would continue to have contact with children. The plaintiffs did come into contact with the accused clergy and subsequently allege that they were victims of molestation. The underlying act that led to the plaintiffs’ injury, therefore, is the misrepresentation that the plaintiffs would be safe in the presence of the priests. The proper focus for determining coverage, then, is on the misrepresentations leading to the molestation” (¶ 10).

The court held that the misrepresentations were clearly volitional (see¶ 13). It did not matter that the Archdiocese did not intend or anticipate that the plaintiffs would be harmed. The misrepresentation of safety was not an accident (see ¶ 12). Finally, the court found it unnecessary to conduct a “failure to act” analysis because the defendants’ conduct was volitional (see ¶ 14).

Flooding – Exclusions

Heavy rains washed away soil from underneath a home’s footings, causing the foundation to collapse. By state code, a retaining wall should have been built to protect against this risk. A homeowner’s insurance policy “included a provision for supplementary coverage in case of collapse if the collapse was ‘caused only by one or more of the following’ enumerated perils. Those perils included ‘use of defective methods in construction.’ However, the same policy excluded loss due to water damage and loss due to earth movement. Both of those exclusions were preceded by an anti-concurrent cause exclusion stating that ‘[s]uch loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss’” (¶ 3). The circuit court granted summary judgment in favor of the insured (Schmitz).

The court of appeals reversed. Writing for the court, Chief Judge Brown first defined the term surface water as used in the policy exclusion as including rain water that fell to the ground (see ¶ 18). The court also declined to recognize a defined-channel exception to the definition of surface water, as recognized by some cases, because the “trench” in this case (the space between an existing crawl space and an addition to the home) was not created for purposes of diverting water (see ¶ 21). “We hold, therefore, that the water that washed away the earth under the Schmitz home was surface water as defined in Schmitz’s policy with American Family” (¶ 22).

The final issue was whether “American Family must cover the damages because a covered risk (defective methods of construction) may have contributed to the loss” (id.). “We need not decide the effect of the anti-concurrent cause provision on the independent concurrent cause rule in this opinion because even using the independent concurrent cause analysis, Schmitz loses this argument. If no water had come through the Schmitz home, the lack of retaining wall would have been irrelevant because there was no damage until the water came through. In other words, the covered risk (defective methods of construction) clearly would not have been actionable without the occurrence of the excluded risk (surface water washing out the earth underneath the home). Defective methods of construction did not really cause the damage so much as it caused a failure to prevent it” (¶ 26).

Homeowner’s Policy – Pollution Exclusion – Bat Guano

The plaintiffs bought a home and later observed a “penetrating and offensive” odor that came from “bat guano.” A remediation contractor could not guarantee the odor’s removal. The plaintiffs’ homeowner’s insurer promptly denied coverage on the ground that the bat guano was “waste” and thus a pollutant under the policy’s pollution exclusion. The circuit court entered judgment dismissing the plaintiffs’ insurance-coverage and bad-faith claims.

The court of appeals reversed in an opinion written by Judge Hoover. The court concluded that “excreted bat guano is akin to exhaled carbon dioxide, both biologically and as a reasonable insured homeowner would view it regarding the pollution exclusion. One could review the pollution exclusion as a whole and reasonably interpret ‘pollutant’ as not including bat guano excreted inside a house. Therefore, strictly construing the exclusion and resolving ambiguities in favor of coverage, we conclude the pollution exclusion doesnot eliminate coverage in this case” (¶ 10). The policy defined pollutant as an “irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gasses and waste. Waste includes materials to be recycled, reconditioned or reclaimed” (¶ 11).

Invoking the rule of ejusdem generis, the court found ambiguity in the policy language, colorfully and memorably observing that “when a person reading the definition arrives at the term ‘waste,’ poop does not pop into one’s mind. Nor does it come to mind when one continues to the listed items that waste includes” (¶ 12).“[A]t best, the clause’s action words do not suggest to the reader a biological process, and they may even suggest that biological processes are not part of the exclusion. Therefore, because a person might reasonably interpret the pollution exclusion as not contemplating bat guano, coverage is not excluded” (¶ 15). In light of the ambiguity, coverage was not excluded.

Commercial General Liability Policy – Auto Exclusion – Sanctions

The plaintiffs were injured in a car accident caused by one of the defendant’s employees, who had run across a highway while checking to see if the defendant’s semi-truck could clear an underpass. The semi was operated by another of the defendant’s employees. A jury returned a $1.5 million verdict for the plaintiffs. The defendant’s commercial automobile insurance policy provided about $1 million in coverage, which is not disputed. The plaintiffs argued that the defendant’s commercial general liability (CGL) policy also covered this accident. The circuit court ruled in the defendant’s favor.

The court of appeals affirmed in an opinion authored by Judge Vergeront. The CGL policy contained an auto exclusion that precluded coverage because the employee’s conduct in running across the highway was “conduct arising out of the use of the semi”(¶ 36). The opinion closely discusses pertinent cases, including several inconsistent supreme court opinions (see ¶ 35).

The circuit judge acted within his discretion by refusing to find coverage under the CGL as a sanction for the defendant’s failure to disclose the policy during discovery. “While the circuit court did not make an express determination on whether or not the conduct of Acuity was egregious, it is evident from the court’s decision that it did not view Acuity’s conduct to be egregious. This conclusion is supported by the record, including: the ambiguity of the discovery requests when considered together, the allegations in the complaint and amended complaint regarding the auto policy, Neenah Creek/Acuity’s counsel’s affidavit explaining why he believed the Zarnstorffs were concerned only with the auto policy, and that attorney’s willingness to inquire further about other Neenah Creek policies in response to a post-verdict letter from the Zarnstorffs and to produce the CGL policy he then learned about” (¶ 51). Moreover, the circuit court did not find sufficient prejudice to justify a sanctions order.

This implied-consent-law case involved the interpretation of Wis. Stat. section 343.305(5)(a), which governs alternative tests for intoxication once the arrested driver submits to the primary test requested by the police agency. The statute provides in pertinent part that “[t]he person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified.”

The defendant argued that this statute requires that law enforcement agencies offer both an alternative test at police expense and, in addition, a reasonable opportunity to obtain a third test at the person’s own expense. The state countered that the statutory language clearly indicates that the driver is only entitled to either the law-enforcement-provided alternate test or a reasonable opportunity to a test at his own expense (see ¶ 6).

In a decision authored by Chief Judge Brown, the court of appeals concluded that “when law enforcement invokes Wis. Stat. § 343.305 to obtain a primary test, it must (1) provide the primary test of its choice at its own expense; (2) provide an opportunity for a second test of its choice at agency expense; and (3) if the second test is refused by the suspect in favor of one at his or her own expense, it must provide a reasonable opportunity for a test of the suspect’s choice at the suspect’s expense. In other words, in any given case, law enforcement may only need to pay for the primary test and provide an alternate test at agency expense. However, because the choice of who pays for and arranges the alternate test is the defendant’s, law enforcement must be prepared to offer either the second test at agency expense or a reasonable opportunity for a test at the suspect’s expense, in addition to paying for the first test…” (¶ 11).

The court also addressed the defendant’s contention that the police lacked reasonable suspicion to stop him based on an anonymous tip that two cars were speeding near a certain park. The vehicles were described as a red SUV and a white Dodge truck with yellow lights. As the officer approached the area, he encountered a white Dodge truck with yellow lights on top of it coming toward him. He turned around and got behind the truck so he could follow it. He did not notice any unlawful behavior on the part of the driver, but he did see a group of people gesturing toward the truck while looking at him. He testified that he understood that to mean that the truck he was following was the one he was looking for. At that point, the truck turned into a driveway, and the officer turned on his emergency lights to initiate a traffic stop, which ultimately resulted in the defendant being arrested for sixth-offense operating while intoxicated.

On these facts, the court concluded that the officer had reasonable suspicion to make the traffic stop. Said the court, “there was an initial anonymous tip providing a sufficient description to allow the officer to identify a particular vehicle. Then, the officer was able to further confirm his identification of this vehicle as the one in question when a group of people standing in the area of the original tip gestured toward the vehicle he suspected. Because the criminal activity he was originally investigating (speeding) would have been visible to the public, he had no reason to doubt the basis of the anonymous tipster’s knowledge” (¶ 23). Further, the tipsters exposed themselves to being identified; “[t]hey were right there at the scene” (¶ 21).

Fleeing an Officer – Flight to a Police Station – Victim Character Evidence

A deputy sheriff stopped the defendant for speeding. According to the deputy, the defendant was uncooperative and verbally aggressive at the scene. When the deputy informed the defendant that he was under arrest, the defendant fled. The defendant’s testimony contradicted that of the deputy in several respects. The defendant portrayed the deputy as the one who was verbally aggressive and claimed that he fled after the deputy struck him with a baton. While fleeing the deputy the defendant called 911 to report that the officer “beat [him] in the head” and to request assistance in locating the nearest police station; he told the 911 dispatcher that he would not pull over because he believed the officer would beat him and that he was scared for his life. Law enforcement officers apprehended the defendant before he arrived at any police station. A jury convicted the defendant of fleeing an officer (Wis. Stat. § 346.04(3)); jury instructions included an instruction on self-defense.

On appeal, the court of appeals affirmed the conviction. A crucial legal issue on appeal was whether the operator of a vehicle can be convicted of fleeing an officer “if that operator is ostensibly driving to police (e.g., a police station)” (¶ 1). In a decision authored by Judge Neubauer, the court of appeals answered that question in the affirmative. “Under the statutory language, if that operator has willfully disregarded a visual signal from any officer so as to interfere with the operation of traffic or pedestrians, the operator’s intended destination is irrelevant” (id.). Said the court,“[w]e understand [defendant] Hanson to argue that there can be no fleeing-and-eluding charge if police know that he is going to stop his vehicle at a police station. The theory is simply that he cannot be fleeing and eluding police if he calls 911 and tells the police where he is going. However, the plain language of Wis. Stat. § 346.04 undermines Hanson’s position. While Hanson speaks generally of fleeing ‘the police,’ the statute expressly makes it a violation of the law to elude ‘any traffic officer.’ Sec. 346.04(3). We agree with the State that the objectives of the statute are readily discerned from its language. It seeks to foster cooperation with individual officers at the time of the initial stop while also discouraging unsafe driving. Thus, as long as Hanson, after having received a visual or audible signal from a traffic officer or marked police vehicle, fled or attempted to elude that officer, it makes no difference under § 346.04(3) that he was fleeing to a police station” (¶ 13).

The appellate court also addressed whether the trial judge erroneously excluded evidence proffered by the defense that the deputy sheriff involved in this case has a reputation in the community as being “confrontational, aggressive and hot-tempered” (¶ 18). The defendant sought to introduce this evidence under Wis. Stat. section 904.04(1)(b), which addresses the admission of victim character evidence. Section 904.04(1)(b) provides the following:

“(1) CHARACTER EVIDENCE GENERALLY. Evidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

….

“(b) Character of victim. Except as provided in s. 972.11(2) [rape shield law], evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.”

The defendant’s request for admission of the character evidence hinged on his characterization of the deputy as the “victim” of the defendant’s crime. The circuit court denied his request based on its determination that the deputy was not a victim. The court of appeals agreed. “While the testimony underlying Hanson’s defense clearly portrayed [the deputy sheriff] as the aggressor, the evidence did not support a finding that [the deputy] suffered injury, sustained losses or was otherwise victimized so as to make relevant the proffered character evidence. The trial court’s exclusion of the § 904.04(1)(b) victim character evidence was not error”(¶ 20).

Sexually Violent Persons Law

Sugden was convicted of a brutal rape in 1976 and sentenced to prison. The state initiated proceedings under Wis. Stat. chapter 980 to have him committed as a sexually violent person. The trial judge ordered Sugden’s commitment based on a jury’s factual findings, which included testimony by experts about his mental condition and likelihood of reoffending. Sugden sought a new trial based on newly discovered evidence and other grounds, which the trial judge denied.

The court of appeals affirmed in an opinion written by Judge Vergeront. First, later changes made to an actuarial-risk assessment (the “Static-99”) relied on by several experts did not constitute newly discovered evidence warranting a new trial. In particular, the experts testified that these risk assessments understated Sugden’s risk of reoffending (see ¶ 22). They also relied on other factors (see ¶¶ 25–27). Second, the rule of completeness did not entitle Sugden to elicit additional statements in one expert’s report regarding possible future supervision, which was irrelevant and would have misled the jury (see ¶ 34). Finally, the court rejected Sugden’s contention that he was entitled to a discretionary reversal because the real controversy had not been tried. This discussion is necessarily fact-intensive but more generally the court’s opinion helpfully discusses the inadmissibility of testimony relating to postcommitment annual reviews, postcommitment treatment, and the screening process used to assess potential chapter 980 candidates.

Torts

Medical Expenses – Proof

A jury assessed damages against the defendant for injuries the plaintiff suffered in a car accident. The only issue on appeal concerned whether sufficient evidence supported the jury’s award of $30,000 in past hospital and medical expenses. Even though no qualified witness testified that the bills were reasonable and necessary, the trial judge found that such an inference could properly be drawn.

The court of appeals affirmed, but remanded the case for further proceedings, in an opinion authored by Judge Fine. Before the effective date of Wis. Stat. section 908.03(6m)(bm) (July 1, 2009), case law required expert testimony about the reasonableness of the medical expenses. “Under Rule 908.03(6m)(bm), a party desiring to prove the reasonableness of a medical expense need no longer have a qualified expert so testify, provided that the bills are ‘patient health care records.’ Although this rule was in effect during the trial, neither the lawyers nor the trial court referenced it. Under applicable standards, though, we may affirm a circuit court for any reason, even if not relied on by either the circuit court or raised by the lawyers” (¶ 4).

Section 908.03(6m)(bm) provides that billing statements and invoices that are patient-health-care records are presumed reasonable; thus, no expert testimony is necessary. The rebuttable presumption is governed by section 903.01. The court examined the record, finding that several exhibits fell within the patient-health-care-records designation of the statute. Others clearly fell outside it. The case was remanded for a determination of whether another bill for nearly $20,000 was issued by an entity that qualified as a health-care provider within the meaning of Wis. Stat. section 146.81(1) (see ¶ 8). If the records fall within the statutory presumption of reasonableness, the insurer has the opportunity to rebut the presumption.

Governmental Immunity – Agents

A city hired road contractors to replace roadways, curbs, sidewalks, and so on. The project manual was more than 250 pages long and specified barricades for traffic control, among other things. The plaintiff was injured when she tripped over the legs of one of the barricades. She sued Pember, a subcontractor, alleging it had negligently placed the barricades and safety signs. The circuit court granted summary judgment in favor of Pember, finding that it was entitled to governmental immunity.

The court of appeals affirmed in an opinion written by Judge Peterson. First, the claim did not fall within the exception for governmental immunity set forth in Wis. Stat. section 893.83(1). The plaintiff failed to invoke this statute in the circuit court, but section 893.83(1) was inapplicable in any event because it is limited to “such matters as the structural and construction components of the road bed and surface,” not the placement of signs (¶ 17).

Second, Pember was entitled to governmental immunity. “An independent government contractor is an agent for purposes of Wis. Stat. § 893.80(4), and is therefore entitled to immunity, if: (1) the governmental authority approved reasonably precise specifications; (2) the contractor’s actions conformed to those specifications; and (3) the contractor warned the supervising governmental authority about possible dangers associated with those specifications that were known to the contractor but not to the governmental officials” (¶ 20). All three requirements were met. Much of the opinion addresses why the project manual satisfied the first element. The second element was satisfied by photos taken of the accident scene and testimony that the city’s engineer had no criticism regarding the placement of the barricades. And the third element was met because “there is no evidence that Pember was aware of any dangers associated with the specifications in the project manual and traffic control plan” (¶ 33).

Worker’s Compensation

Independent Medical Exam – Cross-examination

Schaefer suffered a serious work-related back injury in 2001. In 2006 he had hip replacement surgery, which was unrelated to the work injury. Several doctors concluded that he was permanently and totally disabled. His employer, Aurora, objected, but LIRC found Schaefer to be so disabled. The circuit court affirmed LIRC’s ruling, and Aurora appealed.

The court of appeals affirmed in an opinion written by Judge Brennan. Aurora contended that it was denied its rights when LIRC refused to permit Aurora to cross-examine the doctor who performed an independent medical examination (IME). The court rejected Aurora’s contention. While Wis. Stat. section 102.17(1)(g) gave Aurora the right to “rebut” the IME, this did not include a right to cross-examine the report writer (see ¶ 24). Nor did Wis. Stat. section102.17(1)(d), which is concerned with when reports may constitute prima facie evidence of a claim, supply a right to cross-examine. Moreover, these statutory procedures satisfied Aurora’s due process rights to timely notice of claims and an opportunity to meet the claims by competent evidence (see ¶ 31). “In short, Aurora was given ample opportunity to present competent evidence – vocational and medical reports – challenging the findings in Dr. Ebert’s reports and that is all that due process affords it. There is no per se right to cross-examine a court-appointed author of a report, especially when the request to do so comes late in the game, after LIRC had already granted the parties an extension of time within which to collect and submit evidence” (¶ 34). Finally, the record adequately supported LIRC’s findings.

In dissent, Judge Fine argued that Aurora had a right to cross-examine the writer of the IME report. In sum, the right to “rebut” a report encompassed the right to cross-examine its author, whether at a hearing or by deposition (see ¶¶ 48, 50).

Medical Care – Protective Placements

In 1979, while working, LaBeree suffered catastrophic injuries that left him permanently and totally disabled. His employer, Bowman Plumbing, paid for his institutional care in a county facility where he had been placed pursuant to a protective placement order under Wis. Stat. chapter 55. In 2005 the circuit court determined that LaBeree’s placement in the health care center was not the least restrictive placement, as required by chapter 55, and ruled that he should be placed in a home-based care program pursuant to a community integration plan. The court’s order meant that the cost for LaBeree’s care went from $174 per day to $549. Bowman refused to pay the additional cost. LIRC adopted the findings of an administrative law judge (ALJ) and denied LaBeree’s petition to force Bowman to pay; LIRC ruled that LaBeree had failed to show that his more expensive care was a medical necessity regardless of the chapter 55 order. The circuit court overturned LIRC’s decision, finding that the commission had exceeded its authority when it reviewed the reasonableness and medical necessity of LaBeree’s placement.

The court of appeals affirmed in an opinion authored by Judge Brunner. “This case presents a novel issue: whether the Department possesses authority to independently determine, for worker’s compensation purposes, the reasonableness and medical necessity of an injured employee’s court-ordered transfer to the least restrictive environment under Wis. Stat. ch. 55” (¶ 15). The appeals court agreed with the circuit court’s conclusion. “The Department’s authority under Wis. Stat. ch. 102 is subordinate to the circuit court’s determination as to the least restrictive placement under Wis. Stat. ch. 55. Accordingly, the Commission exceeded its authority by evaluating the medical necessity of LaBeree’s home placement. On remand, the Department may exercise its authority to determine which expenses associated with LaBeree’s placement are reasonable and medically necessary, but may not determine the necessity of the placement itself” (¶ 24). The court also rejected Bowman’s contention that LIRC and the circuit court lacked jurisdiction because LaBeree’s petitions had been dismissed without prejudice by the ALJ (arguably there was no “denial” of coverage) and that Bowman’s due process rights had been violated.

Over LaBeree’s objections, the appeals court remanded the case to the department for a determination of what medical expenses are necessary under the residential placement. “Under Wis. Stat. § 102.24(1), a court setting aside any order may ‘recommit the controversy and remand the record in the case to the commission for further hearing or proceedings.’ This is the appropriate course where the Commission exceeds its authority and decides a worker’s compensation claim on an improper basis. The Department and Commission are in a far better position than this court to determine whether medical expenses are compensable in the first instance” (¶ 34).